158 F.

3d 768

Inez SALES; Debra M. Miller, Plaintiffs-Appellants,

v.
Alphonso L. GRANT; John E. Mason, Jr., in their individual
capacities and in their official capacities as members of
the city of Lynchburg Electoral Board; David T. Petty, Jr.,
in his official capacity as a member of the City of
Lynchburg Electoral Board; Carol Spencer Read, DefendantsAppellees,
and
City of Lynchburg Electoral Board, Defendant.
No. 97-1496.

United States Court of Appeals,

Fourth Circuit.
Argued Jan. 28, 1998.
Decided Oct. 14, 1998.

ARGUED: David Edward Constine, III, Mays & Valentine, L.L.P.,

Richmond, VA, for Appellants. Bradley Brent Cavedo, Shuford, Rubin &
Gibney, P.C., Richmond, VA, for Appellees. ON BRIEF: Anthony F.
Troy, Claudia T. Salomon, Mays & Valentine, L.L.P., Richmond, VA, for
Appellants.
Before WILLIAMS, Circuit Judge, PHILLIPS, Senior Circuit Judge, and
FOX, Chief United States District Judge for the Eastern District of North
Carolina, sitting by designation.
Affirmed in part and reversed and remanded for a new trial by published
opinion. Senior Judge PHILLIPS wrote the opinion, in which Judge
WILLIAMS and Chief Judge FOX joined.
OPINION
PHILLIPS, Senior Circuit Judge.

This is an appeal by Debra Miller and Inez Sales, former Assistant Registrars
of the City of Lynchburg, Virginia, from a judgment dismissing their action
under 42 U.S.C. 1983 (1994) in which they claimed that members of the
Lynchburg Electoral Board violated their constitutional rights by causing them
not to be reappointed because of their political affiliations. They principally
challenge the district court's dismissal of their claims as a matter of law for
failure of proof in their jury trial. They also challenge the court's refusal to
apply offensive collateral estoppel to establish the fact of unconstitutional
motive for a related non-reappointment decision and the trial judge's refusal to
recuse himself for revealed bias. Because we conclude that the court erred in
dismissing the claims as a matter of law for failure of proof, we vacate the
judgment and remand for a new trial. Because resolution of the collateral
estoppel issue could affect a re-trial, we address it and find no abuse of
discretion in the district court's refusal to apply it under the circumstances. In
view of our vacatur of the judgment on other grounds, we consider it
unnecessary to address the recusal issue as it might have affected the judgment
appealed, but observe that our declination to address it is without prejudice to
the right of Miller or Sales to renew their recusal motion upon remand if so
disposed.

I.
2

In late 1993, Republican George Allen was elected Governor of Virginia

replacing incumbent Democrat Douglas Wilder.1 At the time, Linda Arnold was
the General Registrar of the City of Lynchburg and Miller and Sales were
employed as her Assistant Registrars. Arnold had been appointed in 1983 after
the gubernatorial election of Democrat Charles Robb and had selected Sales as
Assistant Registrar in 1985 and Miller in 1991. All three had then served
continuously until 1995.

In Virginia, a general registrar is appointed for a four-year term by the electoral

board of each county or city. Va.Code 24.2-110. Electoral boards are
composed of three members, who are appointed based on the political party
that they represent. Id. 24.2-106. The composition of each board is dictated
by the political affiliation of the governor currently in office; specifically, the
party winning the previous gubernatorial election is entitled to two of the three
electoral board seats with the remaining seat being filled by the political party
garnering the second highest number of votes for the governorship. Id.

Based on the staggered three-year terms of the board members and the term
length for the registrar, the newly-constituted board appoints a registrar in the
second March after the election of the governor. The electoral board also is

empowered to set the number and terms of assistant registrars for its county or
city. Id. 24.2-112. However, the registrar, and not the electoral board,
appoints the assistant registrars. Id.
5

When Governor Allen was elected, John E. Mason, Jr. was the lone Republican
representative on the Lynchburg Electoral Board. Under the "to the victor goes
the spoils" arrangement, Samuel Snow was appointed as the second Republican
Board member in March 1994 replacing a Democratic appointee. The other
Democratic member, David T. Petty, Jr., remained on the Board.

Within days after Governor Allen's election, Mason attended a meeting with
then Chairman of the Lynchburg Republican Committee, Michael Harrington,
and then Republican delegate to the Virginia House of Delegates, Stephen
Newman, to discuss prospects for Registrar candidates now that a Republican
governor had assumed office for the first time in twelve years. (J.A. at 612.) At
that meeting, words were used to the effect that "George Allen has won and we
get to occupy the registrar's office." (Id. at 614.)

On March 10, 1994, Mason contacted Louise B. Plecker, the Registrar of Bath
County, to discuss matters including the Lynchburg Registrar position. (Id. at
237.) During the course of the conversation, Mason informed Plecker that
Arnold was a good Registrar and was performing admirably, but that he wanted
to replace her somehow. (Id. at 238.) Plecker responded that the appointment of
registrar could no longer be dictated by party affiliation and promptly ended the
discussion. (Id. at 239.) 2

Around this time, Mason confronted Arnold and asked her whether, under the
new circumstances, she was going to seek reappointment. (Id. at 607.) By this,
he was referring to the new circumstances that there was a new Republican
governor; that Arnold's term was coming to an end; and that there would be a
Republican Electoral Board majority. (Id. at 608.) At the time, Mason knew
that Arnold was the Democratic Party's choice for Registrar. (Id. at 601-02.)

In August 1994, Arnold received a letter from Robert Garber, the then
Chairman of the Lynchburg Republican Committee, accusing Arnold and her
office of engaging in partisan politics. (Id. at 1034.) Specifically, Garber
claimed that the Registrar's office had refused to provide a requesting
constituent with the telephone number for the Republican Party headquarters.
(Id.) Garber's letter asserted that Arnold "and [her] office operated in a partisan
Democratic manor [sic]. If the allegations are true it would represent concern to
the integrity of the office. Therefore, I would ask that in the future Republicans

receive the same type of treatment as their Democratic counterparts." (Id.)

Arnold forwarded a copy of the letter to Mason and both conducted inquiries
into its validity. (Id. at 604, 688.) Mason understood the reference to Arnold's
"office" to mean Miller and Sales. (Id. at 689-90.) His inquiries led him to
believe that Garber's accusations were groundless. (Id. at 604, 690-91, 695-96.)
10

In January 1995, Mason met with several Republican delegates to discuss how
not to reappoint Arnold. (Id. at 629-30.) At the meeting, he solicited guidance
about how to proceed without violating the law. (Id.) Following this meeting,
Mason suggested to fellow Board members Snow and Petty that the Registrar
position be advertised. (Id. at 275-76.) When neither immediately agreed with
Mason, the three Board members decided to delay further discussions on the
issue until the Board's next meeting. (Id.) After speaking privately with Mason
and Alphonso L. Grant, an active supporter of Republican political causes,
Snow resigned before the scheduled Board meeting because of general pressure
or stress surrounding the reappointment decision. (Id. at 265-66.) Grant was
selected to replace Snow on the Board and immediately voted with Mason to
advertise the Registrar position.

11

After initiating the advertising, the Board enlisted the City of Lynchburg
Personnel Department to handle incoming applications. (Id. at 537.) The
Personnel Department then narrowed the field by suggesting nine final
candidates for interview. (Id.) Of these final nine applicants, at least two, Carol
Spencer Read and Dori Harvey, had been specifically solicited by Grant to
submit applications. (Id. at 703-06, 753-55.) With regard to Harvey, Grant
solicited her application through her father, Chip Harvey. Prior to speaking with
Chip Harvey, Grant had seen him at Republican functions including fundraisers
for political candidates. (Id. at 704.) When Dori Harvey submitted her
application, it also was accompanied by an endorsement letter from Flo
Traywick, a prominent Lynchburg Republican who served as a National
Republican Committee Woman. (Id. at 670-71.)

12

During the Personnel Department's involvement in the initial screening process,

Robert Chambers was the employee primarily responsible for evaluating the
applicants. (Id. at 786.) Grant, as liaison for the Board, was the sole member of
that group dealing with Chambers at this time. (Id. at 787.)

13

On March 22, 1995, the Personnel Department Selection Committee sent the
Electoral Board a memorandum regarding the Registrar position that read as
follows: "Two candidates, Lori Nuckles and Dori Harvey, were included;
however, in our opinion, both would best be suited in the Assistant Registrar
position...." (Id. at 1063.) Chambers later testified at trial that he created this

memorandum at Grant's direction and inserted language from a draft copy

supplied by Grant. (Id. at 795.) He asserted that before receiving Grant's draft
he had never been asked to evaluate the candidates for possible employment as
an Assistant Registrar. (Id. at 796.) He further testified that he prepared the
memorandum solely because of Grant's direction and did not intend it to be any
kind of recommendation from the Personnel Department about the position of
Assistant Registrar.3 (Id. at 797, 807.)
14

On March 28, 1995, Mason faxed Grant a copy of the Garber letter accusing
Arnold, Miller, and Sales of engaging in political favoritism. The next day, the
Electoral Board, by a vote of 2-1 with Mason and Grant voting together, opted
not to reappoint Arnold and, instead, selected Carol Spencer Read to fill the
position.

15

By Mason's admission, in the course of interviewing applicants for the

Registrar position, the Electoral Board on which he and Grant then sat also had
concerned itself with the Assistant Registrar position, despite Mason's
knowledge that appointments to that position were not within his or the Board's
prerogative. (Id. at 642, 654.) And, upon notifying Read of her selection on
March 29, Mason volunteered that she should consider how to treat the
Assistant Registrar positions. (Id. at 450-51.) Before Mason's call, Read had
not thought about the subject and, in fact, was not even aware that the Registrar
officially appointed the Assistant Registrars. (Id.) Mason informed her that she
had several options including: (1) run the office by herself; (2) reappoint Miller
and Sales; or (3) "take the recommendations the Personnel Department had
given the Board." (Id. at 998-99.) In the course of this discussion, Mason
advised Read that several problems could arise if Miller and Sales were
retained. (Id. at 469, 999-1000.) Particularly, because of their loyalty to Arnold,
they "could still correspond with [Arnold] and they could give her information
as far as what [Read] was doing in[her] office, that type of thing." (Id. at 1000.)
According to Mason, potential problems from their reappointment included
leaking, sabotaging, and unfriendliness. (Id. at 469-70, 1000.)

16

Mason then explained to Read the Personnel Department's recommendations of

Harvey and Nuckles that were contained in the March 22 memorandum. (Id. at
471.) In later deposition testimony, Read asserted that she "relied upon [the
recommendation] very much so because I felt comfortable if the Personnel
Department in a major city has screened an individual and made their
recommendation, who am I to say that it's not so. So, yes, I took their
recommendation very highly." (Id.) She also testified in that deposition that,
when Mason explained her options, "I didn't know much of what was going on.
I didn't understand." (Id. at 470.)

17

According to Read, when she was later informed by either Mason or Grant that
Nuckles had withdrawn,4 she assumed that "that narrowed the field down to just
Dori." (Id. at 1003-04.) In testimony read to the jury from an earlier trial, she
had elaborated on this point: "I believe it was Mr. Grant who said that
personnel had interviewed nine people and that of the nine, two were not
qualified to be registrar, but would make good assistant registrars and of those
two, one withdrew or was not eligible because her husband is already a
constitutional officer. That left Ms. Harvey. I had no choice."5 (Id. at 1006.)

18

On the same day that Mason notified Read of her appointment as Registrar,
Mason and Grant arranged for Read to meet them, along with Dori Harvey and
Chip Harvey, at the Piedmont Club for cocktails. (Id. at 488-89.) At the Club,
Read was introduced to Dori Harvey for the first time. (Id.) The next day,
Harvey accompanied Read to the Registrar's office and was introduced as
Read's assistant during the transition. (Id. at 489.)

19

Later that afternoon, Mason delivered a copy of the minutes of the previous
day's Electoral Board meeting to Arnold. (Id. at 149.) This version of the
minutes stated that Mason "was directed to notify Linda Arnold and her two
assistants that they would not be re-appointed.... That notice was provided to
Arnold via the attached March 29, 1995 memo, and is herewith provided to
Arnold so that she may notify her assistants that the end of their terms coincide
with hers." (Id. at 1036.) Mason also then expressly told Arnold "to make sure
that [she] let the girls, you know, notify them of their status." (Id. at 151.)
When Arnold informed Miller and Sales of the content of the memo, both
became very upset and went to speak with the City of Lynchburg Personnel
Director about other available positions. (Id. at 153, 317.)

20

Mason later conceded that the language in the minutes concerning the Assistant
Registrars was inaccurate and that no discussion about their reappointment or
termination occurred at the meeting because it was beyond the Board's
authority. (Id. at 683.) On April 24, 1995, he amended the minutes to reflect
that no decision about the Assistant Registrars was made at the March 29
meeting. (Id. at 1062.)

21

On March 31, it having been decided in the interval that Read needed only one
assistant, Harvey was officially appointed Assistant Registrar. Before the
appointment, Read had not requested any personal references or reviewed
Harvey's application, but later testified that she had spent a considerable amount
of time with Harvey that demonstrated that her personality was well-suited for
the job. (Id. at 494-96, 976, 980, 983-84, 1001.) Read also testified that she was
not impressed with Miller or Sales because they never asked to speak with her

about reappointment, Arnold never mentioned anything about their job

performance, and she perceived them as rude during her office visits. (Id. at
484-86, 979-80, 990.)
22

Miller and Sales denied in trial testimony that they were ever discourteous to
Read on these occasions. Instead they asserted that in fact they never had the
chance to speak with Read because during her office visit following her
appointment, she spent her time in Arnold's office. (Id. at 319-20.) Both also
testified that they assumed they should wait for the positions to be advertised as
had been the process for selecting Read as Registrar. Finally, according to
Miller and Sales, they proceeded on the assumption that, as reflected in the
Board minutes delivered on March 30, their employment as Assistant
Registrars had been officially terminated. (Id. at 316, 390.)

23

Following her replacement as Registrar, Arnold sued Mason and Grant in an

earlier action under 1983 claiming that they had replaced her because of her
political affiliation in violation of her constitutional rights. Following a jury
trial, the jury returned a verdict in favor of Arnold finding that she was not
reappointed because of her association with the Democratic Party, and
awarding her $150,000 in damages. Before the court heard Arnold's motion for
reinstatement as a further remedy, the parties settled the case.

24

Miller and Sales then brought this 1983 action against Mason, Grant, Petty,
Read and the Electoral Board on comparable claims of unconstitutional
conduct in causing them not to be reappointed because of their political
affiliation.6 Relying on the Arnold jury verdict, Miller and Sales moved in
limine for an order establishing as a matter of offensive collateral estoppel that
Mason and Grant had replaced Arnold because of her political affiliation. They
later moved pre-trial to recuse the presiding judge based on allegedly biased
statements he had made at a discovery hearing. Following a consolidated
hearing on the motions, the district court denied both.

25

A four-day jury trial then ensued on Miller's and Sales's claims. At the close of
the evidence, Mason and Grant moved for judgment as a matter of law pursuant
to Rule 50(a) of the Federal Rules of Civil Procedure. Responding to movants'
argument that Read made the reappointment decisions of "her own mind,
without influence," (id. at 1010), Miller and Sales argued that Mason and Grant
had arranged for Read to have only one choice. That even if Read may not
herself have been motivated by political considerations, her decision was
essentially preordained by the manipulations of Mason and Grant who plainly
were so motivated, and who effectively caused Read to give effect to their
politically-motivated purpose.

26

In a critical ruling, the district court disagreed.

27

Responding to counsel's contention for Miller and Sales that Mason and Grant
had "poisoned the well," effectively directing Read's actions, the court opined:
"Not to a person over eighteen years old that has her own mind.... [I]f her mind
could be that easily poisoned then she shouldn't have been appointed Registrar,
and I don't think it was." (Id. at 1014-15.) The court then explained its
conclusion that Miller and Sales had not made out a prima facie case of
unconstitutional politically-motivated conduct on the part of Mason and Grant.

28 order for the case to be submitted to the jury the plaintiffs must produce some
In
evidence to show that the defendants Mr. Mason and Mr. Grant were responsible for
the plaintiffs not being reappointed to the position of assistant registrars and that a
substantial or motivating factor for plaintiffs not being reappointed was their
political beliefs or affiliations.
29
There
is no evidence to support either element. The court is of the opinion that
plaintiffs have failed to make out a prima facie case to go to the jury. This is not the
ordinary case of a firing or failure to reappoint because of political beliefs.
30 party responsible for the election of the assistant registrars is not a defendant in
The
her individual capacity. The plaintiffs claim that it is the defendants Mr. Grant and
Mr. Mason who have wronged them, not Mrs. Read....
31 newly appointed General Registrar had the legal right to appoint whomever she
The
chose to employ. She had no duty to employ the plaintiffs so long as it was not for
the wrong reason, in this case political affiliation.
32 evidence that either defendant, Mr. Mason or Mr. Grant, exercised any undue
No
influence over the new General Registrar as to whom she would appoint.
33
There's
no evidence that Mrs. Read knew anything about the political affiliation of
either of the plaintiffs. She had every legal right to employ someone other than the
plaintiffs if she had a reasonable doubt about their loyalty to her as the new
Registrar.
....
34
35
There
was nothing wrong with Mr. Mason or Mr. Grant giving the Registrar advice
so long as she felt no obligation to act on such advice. The evidence is that Mrs.
Read made the actual choice without any limitation or pressure from anyone.
36

(Id. at 1028-29.) Based on this reasoning, the court granted the motion for

judgment as a matter of law for insufficiency of proof. This appeal followed.

II.
37

Miller and Sales challenge the district court's grant of judgment as a matter of
law for insufficiency of evidence, the court's denial of their in limine motion for
application of collateral estoppel, and the court's denial of their recusal motion.
We take these in order.

A.
38

We review the district court's Rule 50(a) ruling de novo to determine whether
the evidence, viewed in the light most favorable to Miller and Sales, would
have permitted a jury reasonably to return a verdict in their favor. See Andrade
v. Mayfair Mgmt., Inc., 88 F.3d 258, 261 (4th Cir.1996). This requires that we
give Miller and Sales, as non-movants, the benefit of every reasonable
inference that could be drawn from the evidence, neither weighing the evidence
nor assessing its credibility. See Al-Zubaidi v. Ijaz, 917 F.2d 1347, 1348 (4th
Cir.1990). We may then affirm the district court's grant of judgment for Mason
and Grant only if, by our assessment, the only conclusion a reasonable jury
could draw from the evidence was in their favor, see Winant v. Bostic, 5 F.3d
767, 774 (4th Cir.1993), but we must reverse if, on the other hand, reasonable
minds could differ as to the conclusion to be drawn from the evidence. Id.; see
also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91
L.Ed.2d 202 (1986) (stating that under equivalent Rule 56 and Rule 50
standards, judgment as a matter of law is only appropriate "if, under the
governing law, there can be but one reasonable conclusion as to the verdict").

39

The governing law under which we assess the evidence here is settled and
undisputed. The First and Fourteenth Amendments protect state and local
government employees such as Miller and Sales from discharge or other
significant adverse employment actions taken because of their political
affiliations, see Rutan v. Republican Party of Ill., 497 U.S. 62, 79, 110 S.Ct.
2729, 111 L.Ed.2d 52 (1990); Elrod v. Burns, 427 U.S. 347, 360, 96 S.Ct.
2673, 49 L.Ed.2d 547 (1976), unless their public employer "can demonstrate
that party affiliation is an appropriate requirement for the effective performance
of the public office involved," Branti v. Finkel, 445 U.S. 507, 518, 100 S.Ct.
1287, 63 L.Ed.2d 574 (1980), or can prove that even if the action was
motivated in part by political considerations, it would have been taken in any
event for reasons unrelated to political affiliation. See O'Hare Truck Service,
Inc. v. City of Northlake, 518 U.S. 712, 725, 116 S.Ct. 2353, 135 L.Ed.2d 874
(1996) (applying "mixed-motive" principles of Mt. Healthy City Bd. of Ed. v.

Doyle, 429 U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977) to patronage
termination of service provider's contract with municipality). And, within these
general principles, it has been established in this circuit that these substantive
protections extend to the Virginia office of assistant registrar and to decisions
not to reap point holders of that office. See McConnell v. Adams, 829 F.2d
1319 (4th Cir.1987).
40

In seeking to vindicate these rights by their action under 1983, Miller and
Sales had the burden to prove that Mason or Grant, or both, acting "under color
of state[law]" had "subject[ed], or cause[d] [them] to be subjected to the
deprivation of" those rights. 42 U.S.C. 1983. Critically for this case, the
1983 causation language, "subject[ ] or cause[ ] to be subjected," imposes
liability not only for conduct that directly violates a right but for conduct that is
the effective cause of another's direct infliction of the constitutional injury. As
the First Circuit has put it:

41 requisite causal connection can be established not only by some kind of direct
The
personal participation in the deprivation, but also by setting in motion a series of acts
by others which the actor knows or reasonably should know would cause others to
inflict the constitutional injury.
42

Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 560-61 (1st Cir.1989)

(Bownes, J.) (citations omitted).

43

This principle of effective causation by indirect means, grounded in the literal

language of 1983 and in general tort law, see Monroe v. Pape, 365 U.S. 167,
187, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) (holding that 1983 "should be read
against the background of tort liability that makes a man responsible for the
natural consequences of his action"), overruled on other grounds, Monell v.
Department of Social Servs. of City of New York, 436 U.S. 658, 98 S.Ct. 2018,
56 L.Ed.2d 611 (1978), has been widely recognized and applied in 1983
litigation. See, e.g., Malley v. Briggs, 475 U.S. 335, 345 n. 7, 106 S.Ct. 1092,
89 L.Ed.2d 271 (1986) (holding that misleading warrant application by 1983
defendant could be effective cause of ensuing false arrest on judicially-issued
warrant); Jones v. City of Chicago, 856 F.2d 985 (7th Cir.1988) (holding that
misleading statements by 1983 defendants to prosecutor could be effective
cause of ensuing prosecution); Slakan v. Porter, 737 F.2d 368, 372 (4th
Cir.1984) (holding that deliberate indifference of prison officials could properly
be found effective cause of subordinates' infliction of constitutional injury); see
also Spell v. McDaniel, 824 F.2d 1380, 1387-88, 1390 (4th Cir.1987) (applying
general principle to impose municipal liability for policy found to be effective
cause of constitutional injury inflicted by employee). This general principle

indisputably applies as well to the 1983 patronage action here at issue.

44

In assessing the sufficiency of the evidence under these governing substantive

principles, it is important to identify the legal-factual theories upon which the
case was tried, hence the specific issue raised by the Rule 50(a) motion.

45

As earlier indicated, Miller's and Sales's theory, as pleaded and presented at

trial, was that though Read's was the official decision not to reappoint, the
effective cause of the decision was the politically-motivated conduct of Mason
and Grant which effectively ordained Read's decision. Mason's and Grant's
countering defense, as pleaded and presented at trial, was simply a flat denial:
their actions had not been the effective cause of the challenged nonreappointment decisions; those decisions had been properly and independently
made by Read in exercise of her legal powers of office.

46

The issue for us is therefore a narrow one: whether the evidence was sufficient
to support a rational jury finding that Mason and Grant, or either of them, for
politically-motivated reasons,7 effectively caused Miller and Sales not to be
reappointed. The district court ruled that the evidence was not sufficient to
support the requisite finding of causation linking Mason and Grant to the nonreappointments, and on that narrow basis granted the Rule 50(a) motion. We
disagree.

47

We are satisfied, assessing the evidence de novo, that it sufficed under

governing 1983 causation principles to permit a jury rationally to find that
Mason and Grant effectively caused the decision not to reappoint Miller and
Sales. Certainly we do not think it possible to say that when assessed in the
light most favorable to Miller and Sales, "the only conclusion a reasonable jury
could draw from the evidence," was that Mason and Grant did not effectively
cause that decision. And, that is the ultimate test we apply. See Winant, 5 F.3d
at 774.

48

We believe that little more is needed to explain our conclusion than to refer to
our recitation in Part I of the evidence as there deliberately stated in the light
most favorable to Miller and Sales. Miller and Sales properly have emphasized
certain of this evidence and inferences reasonably to be drawn from it as most
critically supporting their position. We summarize.

49

From the outset of the Registrar selection process conducted by the Electoral
Board, Mason and Grant (once he was appointed), had sought, successfully in
the end, to use that process as a means for insuring the appointment of new

Assistant Registrars as well, despite the fact that this was not within the Board's
prerogative. Grant had, in fact, actively solicited Dori Harvey, the eventual
appointee as Assistant Registrar, to apply for the Registrar position.
50

Once on the Board, Grant, who had talked with Mason about the matter, took a
direct step to use the Registrar selection process for that purpose. Acting on his
own so far as the record shows, he drafted and directed the Personnel
Department to send the Electoral Board a memorandum identifying two of the
nine recommended finalists for the Registrar position, one being Dori Harvey,
as "best ... suited in the Assistant Registrar position." This did not reflect any
actual evaluation by the Department, which had not been charged with
evaluating Assistant Registrar candidates, and was done only because directed
by Grant.

51

In the course of notifying Read that she had been appointed Registrar, Mason
brought up the subject of how she should deal with the Assistant Registrar
positions. Until that time, Read had not known that she selected them, and had
therefore given the subject no thought. Mason elaborated by suggesting three
options: do without any; reappoint Miller and Sales; or "take the
recommendations the Personnel Department had given the Board." As to the
option of reappointing Miller and Sales, Mason suggested there could be
several problems arising from their continued loyalty to Arnold, including
correspondence with and leaking of information to her about Read's conduct of
the office, "that type of thing." As to the option of taking the Personnel
Department's recommendation, Mason advised Read of the memorandum
drafted by Grant that had identified Harvey and Nuckles as "suited" for that
position. Read knew neither of them; indeed at the time she "didn't know much
of what was going on."

52

That very night, by Mason's and Grant's arrangement, Read met with them,
Dori Harvey, and Harvey's father at the Piedmont Club for cocktails. This was
the first time Read had ever met or talked with Harvey. The next day, Harvey
accompanied Read to the Registrar's office and was there introduced as Read's
assistant during the transition period. At that time, Read had requested no
personal references for Harvey nor reviewed Harvey's application for the
Registrar position.

53

Later that same day, Mason delivered to Arnold a copy of the purported
minutes of the previous day's Board meeting which stated that "Mason had
been directed to notify Linda Arnold and her two assistants that they would not
be reappointed...." Mason also then directed Arnold to tell Miller and Sales that,
per the minutes, they would not be reappointed, and Arnold did so. When later

confronted with the fact that the Board had no authority in the reappointment of
Assistant Registrars, Mason took the awkward position that the statement was
inaccurate, that the Board had not discussed the Assistant Registrars'
reappointment. He then had the minutes amended to reflect what he now said
was the fact at odds with that earlier reported.
54

Sometime during this period, either Mason or Grant notified Read that Nuckles
had withdrawn from consideration for an Assistant Registrar position,
whereupon, according to Read, she assumed that "that left Ms. Harvey. I had no
choice." Nuckles had not, in fact, withdrawn.

55

Two days after first meeting Harvey, still without having sought any personal
references or read her application or any evaluation (if such there was) by the
Personnel Department, Read officially appointed Harvey as her sole Assistant
Registrar, the Board having decided in the interval that there should be only
one.

56

We agree with Miller and Sales that a jury rationally could infer from this and
related contextual evidence that though Mason and Grant did not themselves
make the decision not to reappoint, their endeavors were, as intended, its
effective cause. More specifically, that their endeavors had the intended effect
of foreclosing for Read any choice but to replace Miller and Sales with Dori
Harvey. And, that this was accomplished by taking advantage of Read's
deliberately encouraged dependence upon them in a new and unfamiliar and
fastmoving situation to convince her that she had but one choice, a choice
bolstered by a bogus official recommendation that they had contrived.

57

Against the weight of this evidence and its inferential force on the causation
issue, Mason and Grant mainly seek to support the district court's ruling by
pointing to conflicting evidence on critical matters. Grant denied contriving a
bogus recommendation for Harvey. Read recanted her earlier testimony that she
was confronted with but one option--to select Harvey--and that in making her
choice she relied heavily on Mason and Grant; in later testimony she asserted
her complete independence in choosing among a number of options, including
the reappointment of Miller and Sales. Mason explained away as simple
inadvertence the misrepresentations in the Board minutes that he used to inform
Miller and Sales of their non-reappointment. It is elementary, however, that
these conflicting versions have no relevance to the Rule 50(a) ruling, despite
Mason's and Grant's rather surprising reliance upon them as the linchpin of
their argument.

58

The crux of the causation issue here is, of course, whether Read did indeed act

58

The crux of the causation issue here is, of course, whether Read did indeed act
as an independent agent in deciding to appoint Harvey and not to reappoint
Miller and Sales, or whether though she made the official decision, it was
effectively made for her by Mason and Grant. In ruling dispositively for Mason
and Grant on the causation issue, the district court seems to have relied almost
entirely upon Read's credibility in asserting her independence. But that, of
course, the court could not properly do in ruling on this Rule 50(a) motion in
the face of the considerable evidence favorable to Miller and Sales, including
Read's own inconsistent prior testimony, drawing that independence in doubt-certainly in genuine issue--as a practical matter.8 Cf., e.g., Mason v. Oklahoma
Turnpike Authority, 115 F.3d 1442, 1451 (10th Cir.1997) ("The jury may have
found it peculiar that [a managing director] would hire as his assistant a person
he barely knew and had never interviewed"). The conflicting evidence favoring
Miller and Sales, not being implausible on its face, should have been given
precedence in ruling on the motion.9

59

As earlier noted, supra note 7, despite reservations as to whether the issue has
been properly raised and preserved for review, we have concluded to address
the sufficiency of the evidence to permit a finding that Mason's and Grant's
challenged conduct was politically motivated.

60

Miller's and Sales's burden was to offer sufficient evidence to permit a finding
that that conduct was substantially motivated by political considerations. See
O'Hare Truck Service, 518 U.S. at 725, 116 S.Ct. 2353. Those considerations
might relate either to the targeted person's affiliation with one political party or
lack of affiliation with or support of another party. See Rutan, 497 U.S. at 64,
110 S.Ct. 2729; Elrod, 427 U.S. at 359-60, 96 S.Ct. 2673.

61

The evidence here clearly sufficed to support, though surely not to compel, a
finding that Mason's and Grant's conduct, which we earlier have concluded
could be found the effective cause of the challenged non-reappointments, was
also politically motivated. Again, we summarize.

62

In the immediate aftermath of the Republican gubernatorial victory, Mason,

then the lone Republican on the Electoral Board, met with other local
Republican office-holders to discuss, among other things, candidates for the
Registrar position, now that "George Allen has won and we get to occupy the
Registrar's office."

63

Following up, Mason contacted the Bath County Registrar to discuss, among
other matters, the Registrar position in the City of Lynchburg, noting that
though Arnold, the Democrat incumbent, was doing a good job, he wanted

somehow to replace her.

64

Later, still during Arnold's incumbency, Mason met with several Republican
office-holders to discuss ways not to reappoint Arnold without violating the
law.

65

During the application process for the Registrar position, Grant solicited Dori
Harvey's application through her father, Chip Harvey, whom Grant knew to be
a participant in Republican fundraising and other events. At the time, Mason
did not know Dori Harvey, but knew her mother was a Republican and
presumed her father to be. When Harvey's application was filed, it was
supported by Flo Traywick, a prominent Lynchburg Republican.

66

Mason and Grant knew at this time that Arnold, the incumbent Registrar, had
been appointed by a Democrat-majority Electoral Board and that Arnold had
appointed both Miller and Sales. And they also knew that the local Republican
Committee Chairman had accused Arnold and her office of conducting the
office in a politically partisan manner.

67

Finally, there is the undisputed fact that all three members of the Registrar's
office, being either known or assumed by Mason and Grant to be associated
with or beholden to the Democratic Party, were replaced at the first opportunity
that arose after Mason and Grant came to be the required Republican majority
on the Electoral Board.

68

We are satisfied that from this evidence a jury reasonably could infer that
Mason's and Grant's conduct respecting the Assistant Registrar positions was
substantially, if not entirely, motivated by political considerations. Mason and
Grant point out that there was no direct evidence that they sought to insure
Harvey's appointment because of her Republican Party ties or to replace Miller
and Sales because of any known or assumed Democratic Party affiliations. But,
constitutional "patronage" law is clear that the requisite political motivation, as
any state of mind, can be proved by circumstantial evidence as commonly the
only kind available for this purpose. See, e.g., Anthony v. Sundlun, 952 F.2d
603, 605-06 (1st Cir.1991) (holding that proof of political motivation in
patronage case not confined to "(relatively rare) instances in which a 'smoking
gun' can be produced" and commenting that "circumstantial evidence alone can
support a finding of political discrimination"); Cygnar v. City of Chicago, 865
F.2d 827, 844-45 (7th Cir.1989) (holding that evidence that patronage targets'
names were known by defendant to be on Democratic Party contributors' list
sufficient to support finding that defendant knew, despite his denial, of their

political affiliations). The concededly circumstantial evidence here was clearly

sufficient to support the required finding.
B.
69

We next address Miller's and Sales's challenge to the district court's refusal to
grant their motion in limine for an application of collateral estoppel based upon
the jury verdict for Arnold in her earlier patronage action against Mason and
Grant.10 Specifically, they sought a ruling that in their action it was an
established fact--with the jury to be so instructed--that Mason and Grant had
caused Arnold's non-reappointment as Registrar for politically-motivated
reasons.

70

This would have involved an offensive use of collateral estoppel which, though
permissible in appropriate circumstances in federal courts, is committed,
because of its particular possibilities for inequity, to "broad" trial court
discretion. See Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 331, 99 S.Ct.
645, 58 L.Ed.2d 552 (1979). The district court exercised its discretion here by
refusing to apply collateral estoppel, expressly relying on two factors: that
Miller and Sales might have joined the earlier Arnold action, see id. (noting this
as a factor militating against preclusion), and that the Arnold action had been
settled, thereby avoiding appellate review.

71

These are relevant and significant factors properly taken into account by the
district court in exercising the broad discretion committed to it in deciding
whether to apply offensive collateral estoppel. We cannot therefore, declare its
decision to refuse application here an abuse of discretion, and accordingly,
affirm its ruling.

C.
72

Finally, we consider Miller's and Sales's challenge to the trial judge's refusal to
grant their pretrial motion under 28 U.S.C. 455 (1993) that he recuse himself
because of his demonstrated bias against their cause.

73

In support of their motion, Miller and Sales presented evidence of several

alleged manifestations of bias on the judge's part. In a telephone conference
with counsel for both sides on February 24, 1997, before any evidence on the
merits had been presented, the judge volunteered that "they [referring to
defendants] had every reason not to hire those ladies [referring to plaintiffs]."
(J.A. at 33, 57.) Further, the judge indicated that because Arnold had threatened
suit, Grant, Mason, and/or Read were justified in not reappointing Miller and

Sales and that doing so was non-discriminatory. When informed by counsel that
defendants did not appear to be pressing Arnold's threat of a lawsuit as their
defense in this case, the court remarked "of course they won't say that, but it's
human nature." (Id. at 36-37.)
74

During the hearing at which he denied the recusal motion, the judge expressed
his dissatisfaction with the outcome of the Arnold litigation, commenting that
he should not have sent the Arnold case to the jury and was surprised by the
verdict because he did not believe there was any evidence to support it. (See id.
at 63-68.) He also remarked that he "felt a little guilty" about suggesting that
the parties in the Arnold case pursue a settlement. (Id. at 86.) During arguments
on the Rule 50(a) motion, when counsel for Miller and Sales contended that the
court should allow the evidence to go to the jury, the judge responded: "No, I
made that mistake in[the Arnold] case and I'm not going to make it here today."
(Id. at 1026-27.)

75

28 U.S.C. 455(a) provides that "any justice, judge, or magistrate shall

disqualify himself in any proceeding in which his impartiality might reasonably
be questioned." Under this statute, "[t]he standard to be applied is an objective
one, to foster not only actual impartiality but also the appearance of
impartiality." United States v. Carmichael, 726 F.2d 158, 160 (4th Cir.1984)
(citations omitted). A trial judge's denial of a recusal motion is reviewed for
abuse of discretion. See United States v. Gordon, 61 F.3d 263, 267 (4th
Cir.1995).

76

In the principal Supreme Court decision interpreting 455(a), the Court

emphasized that disqualifying bias or partiality must normally arise from
events, proceedings, or experiences outside the courtroom. See Liteky v. United
States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994). Opinions
formed during judicial proceedings can, however, under limited circumstances
require recusal. As the Liteky court put it:

77
Opinions
formed by the judge on the basis of facts introduced or events occurring in
the course of the current proceedings, or of prior proceedings, do not constitute a
basis for a bias or partiality motion unless they display a deepseated favoritism or
antagonism that would make fair judgment impossible. Thus, judicial remarks
during the course of a trial that are critical or disapproving of, or even hostile to,
counsel, the parties, or their cases, ordinarily do not support a bias or partiality
challenge. They may do so if they reveal an opinion that derives from an
extrajudicial source; and they will do so if they reveal such a high degree of
favoritism or antagonism as to make fair judgment impossible.

78

Id.

79

Because we have determined that a new trial must be ordered on other grounds,
we believe it unnecessary to determine whether the district court also
committed reversible error by declining to recuse under 455. Our declination
to determine that issue is without prejudice to the right of Miller and Sales if so
disposed, to raise it again on the remand we order. If raised then, it must be
assessed in the different context that results from this appeal and its result.

80

AFFIRMED IN PART; REVERSED AND REMANDED FOR NEW TRIAL.

Because the principal issue on appeal is the sufficiency of the evidence to

survive a motion challenging it, we recite the facts on the basis of undisputed
evidence or as viewed in the light most favorable to Miller and Sales,
sometimes noting specific conflicts in testimony on particularly critical issues

When Arnold was initially appointed, and until this court's decision in
McConnell v. Adams, 829 F.2d 1319 (4th Cir.1987), it apparently was accepted
bipartisan practice to select registrars based on partisan political considerations

In countering trial testimony, Grant denied Chambers's version, asserting that

he never gave Chambers any draft memorandum and that Chambers was lying.
(Id. at 902-03.)

In conflict with this version of Nuckles's conduct, Nuckles testified that she
never withdrew her name from consideration. (Id. at 812-13.)

Testifying at trial of this action, Read changed her version of these events. At
trial she asserted that she did have a choice and that neither Grant nor Mason
caused her not to reappoint Miller or Sales. (Id. at 991, 1004.) She further
asserted that, at the time, she believed she had about six different options how
to proceed and that she did not feel any compulsion in making her decision. (Id.
at 465, 991, 998.)

Mason and Grant were named in their individual and official capacities. Petty
and (presumably, though not nominally) Read were sued only in their official
capacities. No point has been raised about the amenability of the Board to suit.
The theory upon which the claim was tried, as advanced by Miller and Sales
and as understood by the court and opposing parties, was that Mason and Grant
were the active agents in causing Miller and Sales not to be reappointed. It was
on this basis that they alone were sued in their individual, as well as official,

capacities. The other named defendants, Petty, Read, and the Board itself, were
only sought to be held liable in their official capacities on the claim for
injunctive relief of reinstatement were Mason and Grant found to have caused a
violation of the asserted constitutional right
7

Although in their brief Mason and Grant dance vaguely around the sufficiency
of the evidence of their political motivation, it is doubtful that they have
properly raised and preserved that issue as an alternative basis for affirming the
judgment. The reason for the ambivalence is obvious. Under their consistently
maintained position that they did not directly or indirectly cause the nonreappointments, the motivation for whatever they may have done in the matter
was factually and legally irrelevant. They say exactly that at one point in their
brief: "Whether Grant and Mason considered plaintiffs to be part of Arnold's
democratic administration is irrelevant. Read made the appointment, not Grant
or Mason." (Appellees' Br. at 21.) Consistent with this theory, they did not base
their final, oral Rule 50(a) motion on a lack of proof of their political
motivation, and the district court's ruling, consistent with that position and with
the court's obvious view of the case, addressed only Read's motivation: "There
is no evidence that Mrs. Read knew anything about the political affiliation of
either of the plaintiffs." (J.A. at 1029.)
We might therefore properly decline to consider as an alternative ground for
affirmance the insufficiency of evidence of their political motivation and
confine review to the narrow issue whether there was sufficient evidence that
they caused the non-reappointments. See 9A Charles Alan Wright & Arthur R.
Miller, Federal Practice and Procedure 2533, 2536 (2d ed.1995).
In view of the ambiguity of the record on this point, and the obvious relevance
of the issue on any re-trial, see id. at 3536 (noting law of the case
implications), we will assume, for purposes of the case, that it is properly
before us and will address it in following text.

Miller and Sales suggest that the district court's ruling is flawed not only in its
raw evidence assessment but by a legal misapprehension of the controlling
causation rule. Specifically, they say the court erroneously thought the standard
was "undue influence" by Mason and Grant, which would require--borrowing
from the term's use in other contexts--proof of some form of "coercion" or
"fraud." The district court did use the term in opining that Mason and Grant had
not used "undue influence" in affecting Read's judgment. If this did reflect a
belief that the requisite 1983 causation could only be found on that basis, we
agree that this was an erroneous view. Here, however, we need not attempt to
divine whether the district court actually applied a more stringent causation
standard than was proper for, in our judgment, his critical assessment was

erroneous under the proper standard

9

Tangentially, in the Statement of Facts section of their brief (see Appellees' Br.
at 2, 3), Mason and Grant say that Miller and Sales "never sought appointment
to new four-year terms from ... Read ... never took any action, made any
request or comment about wanting to be appointed, etc." This assertion--made
as one of Fact--is not formally made the basis of any legal argument against
causation proof in the Argument section of their brief, except as it may be
inferred from a cryptic comment made in an Argument sub-section concerning
political motivation where it is said that "Sales and Miller never asked Read to
consider them to be her assistants." (Id. at 28.)
Again, as in the case of the political motivation issue, see supra note 7, this was
not made a basis for their oral Rule 50(a) motion, nor was it a basis for the
district court's ruling on that motion. Consequently, we are also doubtful that it
should be considered properly raised and preserved for review under the
applicable rules. If it were, it would be without merit. In the first place, the
assertion in the Argument section of the brief is immediately followed by the
negating recognition that "Nonetheless, Read understood that appointing either
or both as assistants was an option for her. She ... chose not to appoint either of
them." (Appellees' Br. at 28.)
Beyond that concession, the law is against any suggestion that a failure to make
formal application under the circumstances of this case would per se preclude
proof of a patronage claim. See Brett v. Jefferson County, 123 F.3d 1429, 1433
n. 9 (11th Cir.1997) (so holding). Where, as here, the evidence would support a
finding that before they had had any opportunity to make formal application,
they had been officially advised that they would not be reappointed, it would
support a finding that they need not have taken that futile step in order to
preserve a viable claim. Cf. Pinchback v. Armistead Homes Corp., 907 F.2d
1447, 1451 (4th Cir.1990) (holding in commercial employment case that
application is unnecessary where it reasonably appears futile).

10

Although we remand for a new trial on other grounds, we address this issue
because of its possible relevance in further proceedings